Upcoming Supreme Court case over religious charter school marks next milestone in string of religious freedom, education disputes

The legality of the country’s first tax-funded religious charter school will soon be weighed by the Supreme Court, in a case expected to have ripple effects on school choice and religious freedom nationwide.

St. Isidore of Seville Catholic Virtual School, the charter school in question, aims to provide an education “rooted in Jesus Christ and the teachings of the Catholic Church” to Oklahoma students of any or no faith background.

Approved by the Oklahoma Statewide Charter School Board in 2023, the school has been fighting for its survival in the courts for months after civil liberties groups and the state’s Republican attorney general, Gentner Drummond, filed lawsuits against it. Drummond has repeatedly argued that a publicly-funded religious school amounts to state-sponsored religion and that it could open the door to taxpayer-funded Islamic or satanic schools.

After the Oklahoma Supreme Court ruled the school unconstitutional, the U.S. Supreme Court in January agreed to take up the case, as reported by The Lion. Oral arguments are expected in late April.  

The implications of the case will likely extend far beyond St. Isidore, and the case illustrates the Supreme Court’s recent focus on matters of religious freedom. 

“The No. 1 key argument, is kind of a continuation of something the Supreme Court has been focused on over the past several years, and that is whether or not the government can treat a religious organization differently from its secular counterparts,” Alliance Defending Freedom senior counsel Phil Sechler, who represents the state’s charter board, tells The Lion. “Because that’s what the state of Oklahoma has done by opening up a charter school program to private organizations, but then to say to religious organizations, ‘You can’t apply.’” 

A recent line of cases called the “Free Exercise trilogy” will be essential to the Alliance’s free exercise arguments before the court in April, Sechler said.  

Those cases – Trinity Lutheran Church v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin – were a series of rulings establishing that a state cannot deny religious groups generally available public benefits.  

“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” wrote Chief Justice John Roberts. 

In all three of those cases, Sechler tells the Lion, “Not only do they make it clear that the government can’t discriminate against religious organizations and treat them like second-class citizens, but it actually calls that kind of discrimination odious to our Constitution.”  

​​A key argument before the court will be whether a religious charter school that receives tax dollars is a private entity or a state actor. St. Isidore contends that it is not part of the government as the school remains “privately designed, owned, and operated,” despite receiving public funds. 

Oklahoma’s Supreme Court, however, held that St. Isidore was a state actor since the state would be providing direct “monetary support to teach a Catholic curriculum, and students at St. Isidore will be required to participate in the religious curriculum.” That court, agreeing with Drummond, also warned that allowing a publicly funded religious charter school would “create a slippery slope” that could lead to the destruction of “Oklahomans’ freedom to practice religion without fear of governmental intervention.”  

Despite those concerns, St. Isidore points out that it isn’t forcing anyone to apply, nor is the government assigning students to the school. The school, which originally was set to open for the 2024-25 school year before the court ruling delayed it, has received more than 200 applications. 

Citing the large number of applicants, Sechler said that many of them came from “underprivileged backgrounds” and “very rural communities.” 

“Oklahoma is a big state,” he said, noting that the online nature of a virtual charter school would allow students from across the state to receive a quality education. “Not only is it a great option just for school choice generally, but particularly for those parents who really needed to have some great educational option in Oklahoma, it’s a really important alternative.”